Affirmative Action in the Supreme Court: Were Racial Issues Ignored?

On April 22, the U.S. Supreme Court upheld a Michigan voter initiative that banned racial preferences in admissions to the state’s public universities. “Justice [Anthony] Kennedy, joined by the Chief Justice [John Roberts] and Justice [Samuel] Alito, concluded that there is no authority in the Federal Constitution or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions,” read the Supreme opinion brief filed Tuesday. In addition to Kennedy, Roberts, and Alito, three other justices voted with the majority, while Justice Sonia Sotomayor and Justice Ruth Bader Ginsburg voted against and Justice Elena Kagan recused herself, likely because she previously worked on the case as United States solicitor general.

The case — Schuette, Attorney General of Michigan v. Coalition to Defend Affirmative Action — dates back to 2006, when 58 percent of Michigan voters approved Proposal 2. That measure allowed lawmakers to amend the state Constitution to prohibit both discrimination and preferential treatment in public education, government contracting, and public employment. This Michigan initiative was made possible by the Supreme Court’s 2003 decision in Grutter v. Bollinger that upheld that race could be one factor, among many, used by law school admission officials to ensure educational diversity. But after the ballot measure was passed, groups favoring affirmative action sued to block the portion of the law concerning higher education. After the United States Court of Appeals for the Sixth Circuit in Cincinnati ruled, in 2012 by a vote of 8 to 7, that Proposal 2 violated the federal Constitution’s equal protection clause, the case proceeded to the highest U.S. court, which made a very different argument.

“This case is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education,” stated Justice Kennedy, writing for the majority. “Rather, the question concerns whether, and in what manner, voters in the States may choose to prohibit the consideration of such racial preferences. Where States have prohibited race-conscious policies, universities have responded by experimenting ‘with a wide variety of alternative approaches.’ The decision by Michigan voters reflects the ongoing national dialogue about such practices.”

Specifically, the court ruled that there was no constitutional rationale to interfering with the right of Michigan voters to ban affirmative action. “Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy … It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds,” stated the majority opinion. Kennedy also argued that the Michigan case did not parallel other occasions in which the court prohibited states from restructuring their political systems in order defeat efforts to combat discrimination, like requiring public school busing or prohibiting discrimination in housing.

It was a narrow ruling, with Justice Kennedy making the case a question of states’ rights rather than a question of the constitutional rights of minorities in the state, which is the argument made by the dissenting justices.

The dissenting opinion, authored by Sotomayor, claimed that the Michigan initiative put a burden on minorities not faced by other college applicants. “The Constitution does not protect racial minorities from political defeat,” she wrote. “But neither does it give the majority free rein to erect selective barriers against racial minorities.” Her argument is that without checks, like the Supreme Court, democratically approved legislation can still oppress minority groups. “For that reason, our Constitution places limits on what a majority of the people may do. This case implicates one such limit: the guarantee of equal protection under the laws,” Sotomayor said. “Although that guarantee is traditionally understood to prohibit intentional discrimination under existing laws, equal protection does not end there. Another fundamental strand of our equal protection jurisprudence focuses on process, securing to all citizens the right to participate meaningfully and equally in self-government.”

Sotomayor further argued that the history of the United States contains a “long and lamentable record of stymieing the right of racial minorities to participate in the political process.” This case involves the last chapter of discrimination, in which the Supreme court must reaffirm the right of minority members of our society to participate meaningfully and equally in the political process, wrote the dissenting justice. “A majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities,” she added.

The Supreme Court arrived at a similar decision last June regarding the University of Texas at Austin, which signaled represents a growing pattern in how the conservative-leaning Roberts court has dealt with the issue of affirmative action. In the earlier case, justices ruled that so-called racially conscious admission policies are constitutionally permissible in states that wish to use them. “The University of Texas at Austin considers race as one of various factors in its undergraduate admissions process,” stated the 2013 opinion. “The University, which is committed to increasing racial minority enrollment, adopted its current program after this Court decided Grutter v. Bollinger, upholding the use of race as one of many ‘plus factors’ in an admissions program that considered the overall individual contribution of each candidate, and decided Gratz v.Bollinger, holding unconstitutional an admissions program that automatically awarded points to applicants from certain racial minorities.” The plaintiff in Fisher v. University of Texas at Austin, who is Caucasian, was not accepted and sued the institution alleging its consideration of race in admissions violated the equal protection clause of the Constitution.

This decision was a further evolution of the precedent set by Grutter v. Bollinger as is the Michigan case. However, the court’s latest ruling takes the issue of affirmative action one step further by addressing whether voters can prohibit affirmative action programs. More importantly, the decision regarding Proposal 2 can be described as a set back for affirmative action because, in giving voters the right to approve measures that prohibit discrimination and preferential treatment in public education, government contracting, and public employment, it is now easier for states to bar public colleges from considering race and gender in admissions and from government officials from doing the same in hiring. While the 6-to-2 decision was not a surprise, it is a signal of the court’s continuing move to the right on racial issues.

Eight states in total have banned affirmative action, and lawmakers in California briefly considered adopting a measure that would have overturned its ban. Since 1996, when Proposition 209 was passed, the state has forbidden the consideration of both race and gender in university admissions, contract positions, and other public programs. While legal challenges have been mounted to no success, the Supreme Court’s ruling on the Michigan law will likely make any legal challenges even more difficult. In addition, measures similar to the Michigan proposal are now expect to appear on ballots in Ohio, Missouri, and Utah. And, those ballot measures have their supporters.

“The Supreme Court has made it clear that there’s no constitutional problem with banning preferential treatment … and that federal, state, and local governments who want to do that can do so — and I hope that they will,” Roger Clegg, president and general counsel of the Center for Equal Opportunity, told Politico. “The most important takeaway from this is that more states should do what Michigan has done,” Clegg added.